Is your employer not paying overtime? What to know and what to do about it.
As a rule, employees who are “non-exempt” and put in over 40 hours per workweek are legally entitled to receive time and a-half overtime pay. According to the U.S. Department of Labor, an estimated 70% of employers do not fully follow the wage and hour rules – committing a variety of violations that deprive workers of their rights and full and fair pay.
What to know
If you work more than 40 hours in a workweek and your employer is not paying overtime, you should start by determining if your job should be classified as “exempt” or “non-exempt”. Jobs that are exempt are not required to be paid overtime. Jobs that are non-exempt MUST be paid overtime. The task of determining the proper overtime classification of a particular job can be difficult and employers have an incentive to err on the side of labeling a job as exempt – it can save them a huge amount on payroll expense. So, misclassification of jobs as exempt when they should properly be non-exempt (and paid overtime) continues to be a problem for workers across all types of industries. Our firm is here to help workers determine if they have been misclassified as exempt, and if so, recover their back pay. Do not hesitate to contact us if you believe your employer is not paying overtime that is rightfully yours.
In most cases, proper overtime pay classification depends on (a) how much you are paid, (b) how you are paid, and (c) what your job duties/responsibilities are. While there are exceptions, typically, to be exempt an employee must meet 3 tests: (1) be paid at least $455*/per week ($684 as of 1/1/2020) (2) be paid on a salaried basis, and (3) perform exempt job duties. The three most common exempt job titles are “executive”, “professional” and “administrative”.
*Note: The Obama Administration increased the minimum “exempt” salary amount to $47,476 effective 12/1/16 but the increase was blocked by a court ruling. Instead, the Trump Administration only increased the minimum “exempt” salary to $35,568 per year as of 1/1/2020. Please see this page for the latest updates.
If ANY of the following describe your employer’s pay scheme, currently or within the past few years, you are likely owed back pay:
• Hourly pay and “straight time” for hours over 40 per week; OR
• “Day-rate” with no overtime pay for hours over 40 per week; OR
• No overtime paid because workers are treated as independent contractors (1099 “employees”) – even though workers do not run their own business and the work is controlled by the company; OR
• Overtime is paid, but certain bonus or incentive payments are NOT included in the calculation of the overtime pay rate.
What to do
Do Not assume your current or past employer’s pay practices are legal just because many similar companies pay the same way. Whether it’s one employer not paying overtime or an entire industry – they are often wrong and breaking the law.
Know your legal rights on overtime.
Protect yourself and your paycheck against wage theft.
If you are not certain about your right to receive overtime pay, seek independent professional help immediately. Strict time limits (statute of limitations) apply to claims for back pay. Do not rely on what you are told by coworkers, the boss or HR. Our team of overtime pay lawyers has helped thousands of employees recover their hard-earned back pay and offer free confidential consultations. There are never any up-front fees to pursue a claim (no fees unless/until there is a recovery).